USA – ARIZONA Trends and Developments Contributed by: Dan Goldfine, John Desmond, Patrick Masterson and Alexis Taitel, Dickinson Wright PLLC
Algorithm-based price-fixing conspiracy in the rental housing market Arizona courts are set to play an active role in address - ing antitrust litigation in the rental housing context as Arizona Attorney General Kristin Mayes’ commenced an antitrust action on behalf of the state against Real - Page, Inc. and nine rental property lessors in Arizona. Set at the cross-section of the rental-housing industry and market participants’ use of emerging technolo - gies, multifamily housing lessors’ common utilisation of revenue management software is an expected focal point in the antitrust field for years to come. Brought in the Superior Court of Arizona in Maricopa County, the complaint alleges that the lessor defend - ants entered into a hub-and-spoke conspiracy cen - tred around RealPage to charge monopolistic prices. ( Arizona, ex rel. Kristin K. Mayes v RealPage, Inc. et al., (Case No. CV2024-003889) .) Specifically, the state alleges the lessor defendants collectively agreed to provide RealPage with their respective pricing and occupancy data, which RealPage then feeds into an algorithm. RealPage’s algorithm provides each lessor with pricing on their specific units, which the lessor defendants allegedly agreed to accept and follow. That is, the lessor defendants are allegedly outsourc - ing their pricing authority to a common entity, which sets prices for all of the lessor defendants. The state further alleges the lessor defendants forego high rates of occupancy in exchange for the monopolistic pricing RealPage provides. Such monopolistic pricing is only possible if the alleged conspirators all adhere to Real - Page’s pricing. To that end, RealPage allegedly seeks to promote and enforce compliance with its provided pricing. The alleged result of the conspiracy is signifi - cantly higher prices for renters in Arizona. Given the novel dynamics of the alleged conspiracy, Arizona courts are likely to look to federal court appli - cations of the antitrust laws to algorithm-based con - spiracies. Indeed, the Arizona Uniform Antitrust Act encourages such guidance, stating “[i]t is the intent of the legislature that in construing this article, the courts may use as a guide interpretations given by the federal courts to comparable federal antitrust stat - utes.” (ARS Section 44-1412.) The novel aspects of the alleged conspiracy, however, frustrate harmonised applications of the antitrust laws. There are presently
three federal court proceedings analysing the claims and theories at issue in Kristin K. Mayes v RealPage . In United States v RealPage, Inc. (M.D. N.C. Case No. 1:24-cv-00710) , the United States and ten states sued Realpage over the same alleged anticompetitive conduct challenged in Kristin K. Mayes v RealPage . The defendants have filed motions to dismiss in that proceeding, arguing the plaintiffs have failed to allege an antitrust violation. Those motions test the legal issues and standards applicable to algorithm-based conspiracy claims and are presently pending before the court. In Gibson v MGM Resorts Int’l., (D. Nev., Case No. 2:23-CV-00140) , a group of private plaintiffs sued Las Vegas-based hotels and a revenue management soft - ware provider based on analogous claims and theo - ries. In May 2025, the district court found the plain - tiffs failed to state an antitrust claim and dismissed the action with prejudice. ( Id., 2023 WL 7025996 (D. Nev. 2023) ). The plaintiffs appealed that ruling to the 9th Circuit Court of Appeals, which rendered its deci - sion affirming the district court’s ruling on 15 August 2025. (See Gibson, et al. v Cendyn Group, LLC, et al., (9th Circuit, Case No. 24-3576) .) The appellate process magnified the differences between Gibson and other algorithm-based antitrust claims. Notably, the plaintiffs abandoned the claim that the hotels had collectively agreed to utilise the revenue manage - ment software. Instead, the plaintiffs relied solely on the claim that the hotels’ individual agreements with the revenue management software provider, taken in the aggregate, constituted unreasonable restraints on trade in violation of the Sherman Act. The 9th Circuit rejected the plaintiffs’ remaining claim, demonstrating the difficulty plaintiffs may face in pursuing algorithm- based claims outside the per se context. Because the United States District Court for the District of Arizona falls within the 9th Circuit, the appellate court’s ruling could have particular persuasive relevance to Arizona state courts applying the antitrust laws. Finally, In re RealPage, Inc. , Rental Software Antitrust Litigation (M.D. Tenn., Case No. 3:23-MD-03071) is a multidistrict litigation proceeding, consolidating cas - es from across the country for pre-trial proceedings. In re RealPage also addresses the same claims and theories centred around lessors’ use of RealPage’s
293 CHAMBERS.COM
Powered by FlippingBook